Cuomo’s order comes as numerous states have passed anti-boycott legislation in the past year. As these legislators understand, there is no free speech problem here. States have a right to refuse to spend their money on what they view as bigoted or improper conduct.
The First Amendment protects speech, not conduct. The Supreme Court unanimously held, in a case called Rumsfeld vs. FAIR, that the government can deny federal funding to universities that boycott military recruiters. Even though that boycott was based on political considerations, that did not make it protected speech.
Similarly, the act of boycotting Israel does not in and of itself express any political viewpoint. Companies may boycott Israel to prevent further harassment from the BDS movement, to curry favor with Arab states or out of mere anti-Semitism. Unless the company or institution explains its actions , those actions have no message. That is why refusals to do business are not speech.
Indeed, federal law already bans participation in certain kinds of boycotts of Israel — those sponsored by foreign countries — and no one has ever doubted the constitutionality of these measures.
More to the point, the current wave of state anti-boycott measures do not criminalize or prohibit any conduct, let alone speech. The First Amendment allows states to place conditions on companies that want to do business with them. The Supreme Court has repeatedly held that conditioning government money on compliance with anti-discrimination policies does not violate the First Amendment.
While the First Amendment may protect a company’s owner from, say, expressing a belief that homosexuality is wicked behavior, if that belief translates into refusal to serve gay people, the state need not do business with that company. President Obama said as much in 2012, when he signed an executive order limiting federal agencies’ involvement with companies engaged in sexual orientation discrimination.
Israel boycotts — which target all businesses from a particular country — have the key hallmark of impermissible discrimination: They cut off business to people and companies not because of their own particular conduct, but on the basis of who they are.
Boycott activists (when speaking in polite society) claim they merely object to Israeli government policies. But it is not the Israeli government targeted by boycotts, but those with some Israeli connection. Moreover, in practice it is only non-Arab businesses and people that are targeted.
To determine which companies must be divested from under Cuomo’s Order, the General Services Office is charged with making a list of boycotters. This had led anti-Israel activists to raise hysterical claims of “blacklists” and “McCarthyism.” This is nonsense.
A divestment policy requires identifying the companies to be divested. Making a list is the ordinary way of doing this. Anti-BDS laws merely borrowed the listing mechanism from other state laws requiring policy-based divestment from companies engaged in certain activities. That’s bookkeeping, nothing more.
Cuomo’s measure does have one odd clause that addresses not just companies engaged in boycott activity, but also those that “promote others to engage in any activity.” This strange language does not appear in existing anti-BDS laws, and if it were applied to those who merely engage in advocacy of boycotts, it would cross the crucial line between business conduct that can be regulated and protected speech.
But the order’s primary focus — on boycotts themselves — is clearly constitutional.
Kontorovich is a professor at Northwestern University Pritzker School of Law. He has been involved in drafting numerous anti-boycott laws across the country.